Citation Nr: 0007250
Decision Date: 03/17/00 Archive Date: 03/23/00
DOCKET NO. 96-06 988 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Chicago,
Illinois
THE ISSUES
1. Entitlement to service connection for left ear hearing
loss.
2. Entitlement to service connection for tinnitus.
REPRESENTATION
Appellant represented by: Disabled American Veterans
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
L. M. Rogers, Associate Counsel
INTRODUCTION
The veteran had active duty in the Navy from November 1966 to
October 1968 and from January 15, 1991 to April 13, 1991.
The veteran also had a period of service in the Navy
Reserves. These matters come to the Board of Veterans'
Appeals (Board) from an August 1997 rating decision of the
Department of Veterans Affairs (VA) Regional Office (RO), in
which the RO denied entitlement to service connection for
bilateral hearing loss and tinnitus. The veteran perfected
an appeal of the August 1997 decision.
The Board notes that in an April 1998 rating action, the RO
granted service connection and a noncompensable evaluation
for right ear hearing loss from August 1996.
This claim was also developed on the issues of service
connection for skin rash, fracture of the left tibia and
fibula, and varicocele. At the time of the travel board
hearing held in January 2000, the veteran and his
representative advised that the veteran wished to pursue only
the issues of service connection for left ear hearing loss
and tinnitus. Accordingly, these are the sole issues
addressed in this decision.
FINDINGS OF FACT
1. All relevant evidence necessary for an equitable
disposition of this appeal has been obtained.
2. Medical evidence fails to demonstrate that the veteran
incurred a left ear hearing loss or tinnitus during active
service.
CONCLUSION OF LAW
The veteran's left ear hearing loss and tinnitus were not
incurred in or aggravated by during active service.
38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303
(1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
I. Factual Background
Service medical records relating to the veteran's first
period of active duty show no complaints or findings
concerning left ear hearing loss or tinnitus. On examination
for Reserve purposes in June 1973, the veteran specifically
denied hearing loss. In August 1980, the veteran underwent an
audiometric examination which revealed audiological findings,
pure tone thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
LEFT
45
50
45
30
50
In May 1985 the veteran underwent an audiometric examination
which revealed audiological findings, pure tone thresholds,
in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
LEFT
25
30
30
30
50
In June 1985 the veteran underwent an audiometric examination
which revealed audiological findings, pure tone thresholds,
in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
LEFT
25
30
30
30
50
A September 1985 report of medical examination indicated that
the veteran had hearing loss in the left ear and the veteran
had a history of noise exposure while in service.
A January 1987 report of medical examination noted that the
veteran had some degree of hearing loss.
In May 1989 the veteran underwent an audiometric examination
which revealed audiological findings, pure tone thresholds,
in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
LEFT
10
10
05
10
20
In October 1996 the veteran underwent an audiometric
examination by VA which revealed audiological findings, pure
tone thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
LEFT
25
25
20
20
35
The veteran's speech recognition score was 84 percent and
there was an average decibel loss of 25 in the left ear. The
veteran reported that he had a history of exposure to
hazardous military noise. It was also noted that the veteran
had a mild to moderate high frequency sensorineural hearing
in the left ear and his speech recognition was good in the
left ear. The veteran also stated that he began experiencing
bilateral, periodic, buzzing tinnitus after exposure to
engine room noise while in the service and this interfered
with his ability to communicate.
In November 1997 the veteran underwent an audiometric
examination by VA which revealed audiological findings, pure
tone thresholds, in decibels, as follows:
HERTZ
500
1000
2000
3000
4000
LEFT
30
20
20
25
30
The veteran's speech recognition score was 86 percent in the
left ear. The veteran again reported a history of
unprotected exposure to hazardous military noise. It was
also noted that the veteran had a mild to moderate mixed
hearing loss in both ears and speech recognition was good in
both ears. The veteran also stated that he began
experiencing mild, left unilateral, constant tinnitus while
in the service, but currently the tinnitus is not causing any
difficulties. Diagnoses were bilateral neurosensory hearing
loss and constant tinnitus in both ears dating back to the
late 1960's.
In December 1997 a private examiner noted that he found no
evidence in the record which indicated that the veteran had
difficulties with tinnitus while in service. According to
him, there was no medical evidence showing complaints of
tinnitus in service and the veteran did not mark any problems
with his ears or hearing loss on the numerous report of
medical examination forms.
The private examiner also found that the veteran's hearing in
the left ear showed a pattern of fluctuating difficulties
prior to the Gulf War. He concluded that the left ear
hearing loss was possibly related to a middle ear condition.
During a January 1998 travel board hearing the veteran stated
that during the Vietnam Era he was aboard the U.S.S. Boxer
and he was exposed to loud noise as a machinist and gunner.
The veteran reported that he worked around hydraulic
generators that made a lot of noise and he did not have
earplugs. He also stated that he was constantly exposed to
machine gun noise without protection for his ears.
The veteran further stated that while in the service he had
problems with left ear hearing loss and with ringing in his
ears. According to the veteran, he sought medical attention
for his hearing problems while in service.
After his Vietnam War service, the veteran worked as a truck
and cab driver. He reported that none of these jobs
contributed to his hearing loss or tinnitus.
The veteran explained that during Desert Storm/Desert Shield,
he was aboard the U.S.S. Haleakala. He stated that he worked
on the sprinkler systems, he was a gunner and an ammunition
handler and he did not have any type of ear protection.
According to the veteran, he did not complain about his
hearing problems during Desert Storm/Desert Shield. He
stated that he received treatment after service for problems
with his hearing loss.
The veteran explained that he currently has ringing in his
ears everyday and that it is worse in the left ear.
II. Laws and Regulations
Under the law, service connection can be granted for any
disability resulting from disease or injury incurred in or
aggravated during active military service. 38 U.S.C.A.
§ 1110 (West 1991).
Service connection can also be granted for organic diseases
of the nervous system, including sensorineural hearing loss,
if they become manifest to a degree of 10 percent or more
within one year of separation from active service. 38
U.S.C.A. § 1112(a)(1) (West 1991); 38 C.F.R. § 3.309(a)
(1999).
The United States Court of Appeals for Veteran Claims (Court)
has held that a claimant may establish direct service
connection for hearing loss if evidence shows that a hearing
loss is causally related to an injury or disease incurred
during active service. Hensley v. Brown, 5 Vet. App. 155, 164
(1993).
A hearing loss disability for the purpose of applying the
laws administered by the VA is defined in the provisions of
38 C.F.R. § 3.385 (1999). Impaired hearing will be
considered to be a disability when the auditory threshold in
any of the frequencies 500, 1000, 2000, 3000, or 4000 Hertz
is 40 decibels or greater; or when the auditory thresholds
for at least three of the frequencies 500, 1000, 2000, 3000,
or 4000 Hertz are 26 decibels or greater; or when speech
recognition scores using the Maryland CNC Test are less than
94 percent. 38 C.F.R. § 3.385 (1999).
Once the requirements of 38 C.F.R. § 3.385 have been met, and
the veteran has been found to have a present hearing
"disability" under the applicable laws and regulations, a
determination must be made as to whether the current hearing
disorder is related to service. In particular, the Court has
held that 38 C.F.R. § 3.385 operates to establish when a
measured hearing loss is, or is not, a "disability" for which
compensation may be paid, provided that the requirements for
service connection are otherwise met. See Hensley v. Brown,
5 Vet. App. 155, 159-60 (1993). Even if a veteran does not
have hearing loss for service connection purposes by the
standards of 38 C.F.R. § 3.385 during the time of active
duty, such does not prohibit service connection. Service
connection may still be established if a veteran currently
satisfies the criteria of 38 C.F.R. § 3.385, and the evidence
links current hearing loss with service. Id. at 158. The
threshold for normal hearing is 0 to 20 decibels. Id. at
157.
The threshold question that must be resolved with regard to
the claim is whether the veteran has presented evidence that
the claim is well grounded. 38 U.S.C.A. § 5107(a); Epps v.
Brown, 9 Vet. App. 341 (1996), aff'd , 126 F.3d 1464 (Fed.
Cir. 1997), cert. denied, 118 S.Ct. 2348 (1998). A well-
grounded claim is a plausible claim, meaning a claim that
appears to be meritorious on its own or capable of
substantiation. Epps, 126 F.3d 1468. An allegation of a
disorder that is service connected is not sufficient; the
veteran must submit evidence in support of the claim that
would "justify a belief by a fair and impartial individual
that the claim is plausible." Tirpak v. Derwinski, 2 Vet.
App. 609, 611 (1992). The quality and quantity of the
evidence required to meet this statutory burden depends upon
the issue presented by the claim. Grottveit v. Brown, 5 Vet.
App. 91, 92-93 (1993).
In order for a claim for service connection to be well
grounded, there must be a medical diagnosis of a current
disability, medical or lay evidence of the incurrence of a
disease or injury in service or the applicable presumptive
period, and medical evidence of a nexus between the in-
service disease or injury and the current disability. Caluza
v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78
F.3d 604 (Fed. Cir. 1996)(table). Alternatively, the second
and third elements can be satisfied by evidence showing that
a disorder was noted during service or any applicable
presumptive period, evidence of post-service continuity of
symptomatology, and medical or, in some circumstances, lay
evidence of a nexus between the present disability and post-
service symptomatology. In addition, if the claim for
service connection pertains to a disease rather than the
residuals of an injury, a well grounded claim can be
established by evidence showing a chronic disease in service
or during any applicable presumptive period and present
disability from that disease. See Savage v. Gober, 10 Vet.
App. 488, 495-497 (1997); 38 C.F.R. § 3.303(b).
A lay person is not competent to make a medical diagnosis or
to relate a medical disorder to a specific cause. Therefore,
if the determinant issue is one of medical etiology or a
medical diagnosis, competent medical evidence is generally
required to make the claim well grounded. See Grottveit, 5
Vet. App. at 93. A lay person is however, competent to
provide evidence of an observable condition during and
following service. Savage, 10 Vet. App. at 496. If the
claimed disability relates to an observable disorder, lay
evidence maybe sufficient to show the incurrence of a disease
or injury in service and continuity of the disorder following
service. Medical evidence is required, however, to show a
relationship between the current medical diagnosis and the
continuing symptomatology. See Clyburn v. West, 12 Vet. App.
296 (1999). In determining whether the claim is well
grounded, the evidence is generally presumed to be credible.
See Arms v. West, 12 Vet. App. 188 (1999).
If the veteran fails to submit evidence showing that his
claim is well grounded, VA is under no duty to assist him in
further development of the claim. See Schroeder v. West, 12
Vet. App. 184 (1999). VA may, however, dependent on the
facts of the case, have a duty to notify him of the evidence
needed to support his claim. 38 U.S.C.A. § 5103; see also
Robinette v. Brown, 8 Vet. App. 69, 79 (1995). The veteran
has not indicated the existence of any evidence that, if
obtained, would make his claim well grounded. VA has no
further obligation, therefore, to notify him of the evidence
needed to support his claim. See McKnight v. Gober, 131 F.3d
1483, 1485 (Fed. Cir. 1997).
III. Analysis
The veteran contends that he has left ear hearing loss and
tinnitus as the result of noise exposure in service.
The results of a November 1997 audiogram and a speech
recognition score for the left ear indicate that the veteran
has a hearing loss disability as defined in 38 C.F.R.
§ 3.385. In addition, during the November 1997 VA
examination the veteran was diagnosed with mild to moderate
hearing loss in the left ear and constant tinnitus. The
first Caluza element has been satisfied because there is a
current medical diagnosis of disability. Further, the
testimony provided by the veteran concerning his duties
during his periods of active duty are credible as to his
exposure to acoustic trauma. Therefore, the second element of
Caluza also has been met. The inservice audiograms and the
testimony by the veteran satisfy the requirement of a
possible nexus between the inservice exposure to acoustic
trauma and the current left ear hearing loss and tinnitus.
The Board concludes that the claims by the veteran are well-
grounded. Id.
An evaluation of the veteran's claims on the merits shows
that, in December 1997, a private examiner, a specialist in
audiology, found that neither the veteran's left ear hearing
loss nor tinnitus were a consequence of either of his periods
of military service. A review of the record discloses no
medical opinion or other competent medical evidence to the
contrary and none has been provided.
The veteran has stated that his present hearing loss and
tinnitus are the result of noise exposure in service, but his
statements are not probative because he is not competent to
provide evidence that requires specialized medical knowledge.
Grottveit, 5 Vet. App. at 93; Espiritu v. Derwinski, 2 Vet.
App. 492 (1992). As the preponderance of the medical
evidence is against the claims, service connection for left
ear hearing loss and tinnitius must be denied. 38 U.S.C.A.
§§ 1110, 5107; 38 C.F.R. §§ 3.303, 3.304.
ORDER
Entitlement to service connection for left ear hearing loss
is denied.
Entitlement to service connection for tinnitus is denied.
WAYNE M. BRAEUER
Member, Board of Veterans' Appeals